The President, Directors and Company of the Ontario Bank against Baxter. The same against three others, in three several causes

The President, Directors and Company of the Ontario Bank against Baxter. The same against three others, in three several causes. ALBANY, Oct. 1826. These were separate actions on the same promissory note, against the several defendants, as maker and separate endorsers. All the causes being noticed for trial at the last Oneida circuit, they were ordered by the circuit judge to be put off, on payment of costs. These were taxed at the full costs of the circuit in each cause. The defendant refused to pay according to the taxation ; insisting that he was hound to pay full costs in only one of the causes, and disbursements only in the others, and claiming that the statute of April 21,1818, (sess. 41, c. 259, s. 6,) extended to the case. He accordingly tendered this amount to the plaintiffs’ attorney. The latter, claiming the full costs in all the causes, moved the three for trial, in which disbursements only were tendered, and took inquests. An objection to this course was made to the circuit judge ; and he was moved to order a re-taxation. He replied, that the costs having been taxed by a competent officer, must be paid ; that he had nothing to do with the taxation ; and the supreme court only could afford relief on this head. He accordingly suffered the inquests to be taken. An affidavit of merits was now made by the maker, in the three causes, which were against the endorsers. He swore that he was acquainted with the defence in each cause ; and that it was the same in each of the four causes. On these facts, A motion was made to set aside the inquests for irregularity ; and that the costs be re-taxed, R. Cossett, for the motion. (' P. Kirkland, contra. The statute, (sess. 41, ch. 259, s. 6,) regulating the costs in several suits on the same note, &c. applies to the general, not the interlocutory costs of the cause; e. g. the costs of putting off a cause at the circuit. Where several suits are brought against the maker and endorsers of a note, an affidavit of merits to set aside an inquest in all the causes, may be made by the maker ; he being acquainted with the facts, and the defence being the same in all the [MAJORITY — Curia.] Curia. This motion cannot be granted, on the ground of irregularity. The statute, (sess. 41, ch. 259, s. 6,) regulating the costs of several suits on the same instru-naent or note, &c. against maker and endorsers, &c. applies only to the general, not to the interlocutory costs of the cause. But there is an affidavit of merits. It is objected that this is made by the maker, who is not the nominal defendant in the three causes. He is, however, a party to the instrument; and asserts his acquaintance with the facts in each cause ; and that the defence is the same in all. We think this sufficient, and grant the motion to set aside the inquests, on payment of all the costs. The motion to re-tax is denied. Rule accordingly.